Legal Custody Rights for Divorced Parents

When parents think of the term custody in a divorce case, they generally think of physical custody — how many overnights will the child spend with each parent during each week and how will this change for holidays and summer. Physical custody is part of what is decided by our courts or by consent if the parties can agree but it is not the only type of custody our law addresses when parents divorce. Another custody claim or right is legal custody.

Although our North Carolina General Statutes do not distinguish between “physical custody” and “legal custody” our case law explains that legal custody is the right to make major decisions for minor children. Our custody orders and agreements generally include a provision for legal custody or major decision making.

Major decision making includes areas such as health, education and religion although parents may also include other decision making areas particular to their family values, culture or the specific needs and interests of the child. Day-to-day decisions (what the child wears to school, when she should do her homework and whether she has earned screen time for completing that day’s chores) would generally fall to the parent who has physical custody or parenting time on that given day.

Who has legal custody? Parents can decide by agreement to share legal custody jointly or to assign decision-making for all major decisions or particular major decisions to one parent or the other. Our law determines legal custody under the same general test that governs all child custody issues, which is “the best interest of the child.”

Our law also recognizes that parents, generally speaking, have a right to have some control over and responsibility to make decisions that have important and long-term implications for the child and his or her welfare. Parents who are “fit” to make decisions should make decisions for their children. The fitness of a parent is determined by examining the characteristics of the parents which include the physical, mental or financial fitness or other characteristics of the parent that would lead to decision-making in the best interest of the child.

Rebecca B. Wofford is a family law attorney with Wofford Law, PLLC and a North Carolina-certified Parenting Coordinator. If you have questions about legal custody or any other aspect of your family law matter, contact Wofford Law at 704.626.6672 to consult with one of our family law attorney. For more information about Wofford Law, visit http://www.woffordfamilylaw.com.